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SECTION 396. What are highways.

397. Origin of highways.

398. Abandonment.


§ 396. Highways are roads or streets and What are bridges, laid out or erected by the public, or if laid out or erected by others, dedicated or abandoned to the public.

Origin of

§ 397. Roads recorded as highways, according highways. to law, and any roads used as such for a period of twenty years, are highways.' Whenever any corporation owning a toll-bridge,' or a turnpike,' or plankroad, is dissolved or discontinues the road, the bridge or road becomes a highway.

[blocks in formation]


§ 398. A road not worked or used for the period Abandon of six years ceases to be a highway for any purpose whatever.

1 R. S., 1149, § 113.

Lyon v. Munson, 2 Cow., 426.




SECTION 399. The public easement.

400. Adjoining owner or occupant may construct sidewalk.

401. May plant trees.

402. Gas companies may lay conductors.

403. Other corporations may acquire right of way.

The public easement.



may con


§ 399. By taking or accepting land for a highway the public acquires only the right of way'


and the incidents necessary to enjoying and maintaining it, subject to the regulation of the towns as in this Code provided, and the right of pasturage. All trees within the highway, except only such as are requisite to make or repair the road or bridges, on the same land, are for the use of the owner or occupant of the land."

1 16 N. Y. R., 97; 15 Johns., 447; 2 Ib., 357; 14 Barb., 692; 11. * 7 Barb., 297; 25 Ib., 9.

Barb., 390.

7 Barb., 309; 5 Den., 9.

1 R. S.,1055, § 153.

Restrictions upon the weight of loads upon roads in the county of Dutchess are contained in local statutes. (Laws of 1857, chs. 116, 404, 417.) So of restrictions upon the allowing of animals to run at large in the county of Westchester. (Ib., chs. 447, 582;) and in the town of Flatbush, in the county of Kings. (Ib., ch. 137.)

§ 400. Any owner or occupant of land may construct side struct a sidewalk on the highway, along the line of his land, subject, however, to the authority conferred by law on the overseers of highways; and any person who takes a horse or team upon such sidewalk shall forfeit one dollar to the use of such owner or occupant.

May plant trees.

1 R. S., 1052, §§ 137, 138, as amended by Laws of 1854,

ch. 324.

§ 401. Any owner or occupant of land adjoining a highway not less than three rods wide, may plant trees on the side contiguous to his land. They shall be set in regular rows at a distance of

at least six feet from each other, and not more than six feet from the boundary of the highway. If the highway is more than six rods wide the row shall not be less than six nor more than twelve feet from the boundary of the highway. Whoever injures any of them is liable to the owner and to the occupant for the damages which they may respectively have sustained, and is guilty of a misdemeanor.

1 R. S., 1055, § 154, and Laws of 1857, ch. 181, § 22.

Gas companies may lay conduc

$402. Any gas-light company, incorporated under the laws of the state, has power to lay con- tors. ductors for conducting gas through the public ways and squares in the city, village or town where it is established, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe.

From 1 R. S., 1269, § 18.

§403. The cases and the manner in which rail- Other cor



right of way.

way, toll-bridge, plankroad and turnpike companies acquire may acquire a right of way upon the public high

ways are provided in subsequent chapters of this Code.

Office of commis

sioners and




SECTION 404. Office of commissioners and overseers of highways.
405. Duties of commissioners of highways.

406. Application for additional appropriation.

407. Notice of application.

408. Resolution allowing same to be furnished to supervisor.

409. Duty of supervisors.

410. Repairs in case there is not time for such application.

411. Duties of overseers of highways.

412. Sidewalks and trees.

413. Scraper and plough.

414. Extra work by overseer.

415. Penalties on overseers for neglect.

416. Duty of commissioners to prosecute.

417. Application of penalties.

418. Order made by two commissioners.

419. Actions against railway corporations.
420. Onondaga Indian reservation.

§ 404. The mode of determining the number of

overseers of commissioners of highways in each town; the conditions of eligibility to office, the manner of their election and qualification, and the security they are required to give; the compensation for serving; the penalty for not serving; the mode of filling vacancies, are prescribed by the general laws relating to the government of towns contained in part IV of this Code.

Duties of commissioners of

§ 405. The commissioners of highways in each highways. town have charge of the highways therein. It is

their duty:

1. To cause them to be kept in repair;

2. To regulate highways, public landings and watering places laid out, and to alter such as a majority of them deem inconvenient;

3. To cause to be recorded, opened and worked, such highways as are laid out by them, pursuant to the provisions of article VI of this chapter, or by special commissioners appointed under article I of chapter II, of title II, of part IV, of this Code; and to ascertain, describe, and enter of record in the town clerk's office, such roads used as highways as have been laid out but not sufficiently described, and such as have been used for twenty years but have not been recorded;

The act for the counties composing Long Island (Suffolk, Kings and Queens) directs them to enter of record such highways "as shall have been laid out but not sufficiently described, and such as were used as highways for twenty years or more next preceding the twenty-first day of March, one thousand seven hundred and ninety-seven, and which shall have been worked and used as such constantly for the last six years."

4. To divide their town into so many road districts as they deem convenient, by writing, under their hands, to be lodged with the town clerk and by him entered in the town book; such division to be made annually, if they deem it necessary, and in all cases at least ten days before the annual town meeting;

5. To assign to each district such persons liable to highway labor as they deem proper, having regard to proximity of residence as much as may be; subject, however, to the provisions of article V of this chapter;

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